민사소송절차에서의 정보 및 증거공개와 수집제도

Abstract

Access to documents and other information in civil disputes in Korea: focused on the order to disclose the categories and lists of documents

For a long time Korean Code of Civil Procedure(KCCP) has empowered a party relying on a document in the possession or control of the opposing party to request the court to order production of the document for use as documentary proof in evidentiary proceedings if the requesting party had a legal right to possession or use of the document. However, since the 2002 reforms the court has the authority to order production of documents based solely on their relevance to disputed facts(KCCP 344 ②). Meanwhile, in Korea there are some devices for parties to gain documentary evidence from opposing party and the third person such as “order to produce documents(KCCP 344)”, “entrust a person who holds a document with forwarding it(KCCP 352)”, “entrustment of investigation(KCCP 294)” and “measures for hints and feedback(KCCP 140)”. These devices except measure for hints and feedback, however, are treated as evidentiary inspections and measure for hints and feedback has been seldom used among Korean courts because they consider that it should be used only for clarification of case.Then there had been no devices for gathering information and evidence in Korean evidentiary proceedings until 2002 Civil Procedure Reforms. Now, a party can request the court to order production of lists and categories of the document for use as a device for identification of documents(KCCP 345, 346). The request for an order to produce the lists and categories of the documents should identify the facts to be proved or outline of documents and opponent should produce the lists and categories of documents that he holds and he would like to produce as a evidence in proceedings. Of course, lists and categories of documents should be relevant with the case. However, there is no explicit sanction in KCCP against unjustified refusal to produce a lists and categories of documents requested and ordered to be produced. Furthermore, the court has no authority to order third parties to produce lists and categories of documents solely on the basis of their relevance in litigation between others. Of course, Korean evidentiary device for acquiring information such as an order for production of lists and categories of the document is not competitive with Anglo-American disclosure and discovery tools, but this is the first step for KCCP to adopt new devices for gathering information and evidence in evidentiary proceeding. And in the near future we should and could develop high-advanced devices which would be appropriate for Korean situation. In fact, automatic and mandatory disclosure was criticized by many academics for requiring excessive and non-relevant information. Then we should be careful for adopting them and compromising them with our litigation realities.